Citation Nr: 1031933
Decision Date: 08/25/10 Archive Date: 09/01/10
DOCKET NO. 09-13 207 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Marine Corps from
September 1967 to June 1971.
This appeal comes before the Department of Veterans Affairs (VA)
Board of Veterans Appeals (Board) from a November 2008 rating
decision of the VA Regional Office (RO) in Waco, Texas that
denied service connection for tinnitus.
FINDINGS OF FACT
1. Noise exposure is consistent with the Veteran's duties in
service.
2. The Veteran does not have tinnitus attributable to inservice
noise exposure.
3. Tinnitus was not manifest during service.
CONCLUSION OF LAW
Tinnitus was not incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1154(a), 5103, 5107 (West 2002 & Supp. 2010):
38 C.F.R. §§ 3.102, 3.303, 3.304 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran asserts that he now has ringing of the ears because
of duties in service as a jet engine mechanic on F4 Phantom jets
performing routine maintenance. He also contends that while in
Vietnam, he was assigned several additional responsibilities in
the maintenance of the jets that required very close inspections
with the engine running that involved five to eight flights a day
for an entire year. He maintains that his doctors have told him
that the high frequency pitch he hears is due to exposure to
extreme jet engine noise in service. The Veteran asserts that as
such, service connection is warranted for tinnitus.
Preliminary Considerations - VA's Duty to Assist the Veteran.
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA) has
a duty to notify and assist claimants in substantiating a claim
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,
5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a) (2010). Upon receipt of a complete or
substantially complete application for benefits, VA is required
to notify the claimant and his or her representative, if any, of
any information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183
(2002).
The notice requirements of the VCAA apply to all elements of a
service-connection claim, including: (1) veteran status; (2)
existence of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date of the disability. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Further, this notice must
include information that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id. at 486.
Here, the Veteran was sent a letter in June 2008 prior to the
initial unfavorable decision on the claim under consideration.
The letter informed the appellant of what evidence was required
to substantiate the claim and of the appellant's and VA's
respective duties for obtaining evidence. Notification that
included information pertaining to a disability rating and an
effective date for the award if service connection were granted
was also sent to the appellant at that time. In this case,
however, service connection is being denied. Therefore, no
rating or effective date will be assigned with respect to the
claim for service connection.
The Board finds that all necessary development has been
accomplished and that appellate review may proceed without
prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384
(1993). VA clinical records have been received and associated
with the claims folder. The Veteran was afforded a VA
examination pertinent to the claim in October 2008 that is
determined to be adequate for compensation and pension
adjudication purposes. The Veteran's statements in the record,
as well as the whole of the evidence have been carefully
considered.
The Board is satisfied that the RO has complied with the duty-to-
assist-requirements of the VCAA and the implementing regulations.
For the foregoing reasons, it is not prejudicial to the appellant
for the Board to proceed to a final decision in this appeal. No
further notice or assistance to the appellant is required to
fulfill VA's duty to assist in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
claim is ready to be considered on the merits.
Law and Regulations
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R.
§ 3.303 (2010). Service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d) (2010).
For the showing of chronic disease in service there is required a
combination of manifestations sufficient to identify the disease
entity, and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic." Continuity of
symptomatology is required where the condition noted during
service is not, in fact, shown to be chronic or where the
diagnosis of chronicity may legitimately be questioned. When the
fact of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303 (2010).
When a veteran seeks service connection for a disability, due
consideration shall be given to the supporting evidence in light
of the places, types, and circumstances of service, as evidenced
by service records, the official history of each organization in
which he served, his military records, and all pertinent medical
and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R.
§ 3.303(a).
Factual Background
The Veteran's service medical records show no complaints
pertaining to ringing of the ears. His ears were evaluated as
normal in June 1971 for discharge from active duty and no
pertinent defects were recorded.
The record contains a letter dated in July 1971 from Spartan
School of Aeronautics indicating that the Veteran was enrolled in
the aviation technician course which was a comprehensive 26 1/2
month course of study composed of studies in aviation
maintenance, radio-telephone operations, aircraft accident
insurance investigations and avionics systems.
A claim for service connection for ringing in the ears was
received in May 2008. The Veteran reported at that time that his
military occupational specialty was jet mechanic, plane captain
and quality control inspector for several years. He related that
he was in close contact with jet engines on a daily basis on
which he had to make adjustments during engine run-up and prior
to take offs. The Veteran stated that being exposed to high
frequency noise of jet engines for extended periods had caused a
constant ringing in his ears that had not gone away in over a
year and had gotten worse.
VA outpatient clinical records dated between 2007 and 2008 were
received showing that the Veteran was seen in May 2007 with
complaints that included impaired hearing and ringing of the ears
for the last couple of month. Examination of the ear, nose and
throat were normal. The assessments included ringing in the
ears. In November 2007, the appellant complained of bilateral
earache and fullness of one month's duration, the right greater
than the left. It was also noted that tinnitus in the right was
worse. Examination disclosed an edematous and erythematous ear
filled with thick discharge with mold in the right obscuring the
tympanic membranes. Ear microscopy was performed with suctioning
of discharge. The tympanic membrane was edematous and
erythematous. No perforation was visualized. An assessment of
bilateral otomycosis was rendered.
In December 2007, the Veteran complained of right nonpulsatile
tinnitus over the past six months. In February 2008, it was
recorded that he had a history of otomycosis and presented for
follow-up. It was noted that there were no acute complaints but
that he reported right nonpulsatile tinnitus and slight
subjective hearing loss. An assessment of right tinnitus and
hearing loss - likely noise induced was rendered.
The Veteran was afforded a VA examination for ear disease
purposes in October 2008. History of duties as a jet aircraft
mechanic with only "Mickey Mouse" ear protection in service was
reported. He stated that he served in Vietnam for one year in a
support capacity as opposed to active combat. He said that he
continued to maintain jet aircraft in Vietnam, particularly the
F-4 Phantoms. The examiner noted that subsequent to separation
from service, the Veteran denied a history of significant
nonmilitary noise exposure.
The appellant provided an almost two-year history of an abrupt
onset of right-sided high-pitched tinnitus that had been constant
and had significantly affected his sleep.
The examiner noted that review of the service records was
negative for complaints of tinnitus. Pertinent clinical history
pertaining to hearing loss and tinnitus in VA outpatient records
previously cited were reported. Following examination, a
pertinent diagnosis of right-sided constant tinnitus
(approximately two years' duration) was rendered.
The examiner commented that although the Veteran had requested
service connection for tinnitus due to service, there were no
complaints of such recorded while on active duty. It was
reported that he had complained of tinnitus only over the past
couple of years. The examiner noted that with an abrupt onset of
right-sided tinnitus and no complaints prior to such, "in my
opinion, the most likely etiology would be viral cochleitis. In
any case, I can find no indication that...tinnitus was noted while
on active duty, and there is every reason to think that his
current symptoms have occurred subsequent to separation from
service." The examiner added that it was therefore his opinion
that it was less likely than not that the Veteran's right-sided
tinnitus might be related to military acoustic trauma.
Legal Analysis
The Veteran served in Vietnam but does not assert that he was in
combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West
2002) are not applicable.
The Veteran's DD form 214 reflects a military occupational
specialty of aviation construction mechanic. As such, the Board
finds that the appellant's statements concerning in-service noise
exposure are credible when viewed in conjunction with the
available evidence, and are consistent with his occupation and
history of noise exposure. Given this factual background,
exposure to noise is found to be consistent with the
circumstances of his service. See 38 U.S.C.A. § 1154(a) West 2002
& Supp. (2010). Accordingly, in-service exposure to noise is
conceded. However, this does not in and of itself enable a grant
of service connection. Rather, the evidence must demonstrate
that current ringing of the ears is related to such service.
After reviewing the evidence pertaining to the claim in its
entirety, the Board concludes that service connection for
tinnitus is not warranted.
Despite a military occupational specialty in which it may be
conceded that the Veteran may have been exposed to noise, his
service treatment records are not indicative of any complaints or
references to ringing of the ears, to include on discharge
examination in June 1971. Post service, there is no indication
of ringing of the ears until the Veteran sought treatment for
such in May 2007. He reported a two-month history of such at
that time.
The Board points out, however, that the 2007 complaint of
tinnitus is more than 35 years after discharge from active duty.
There is nothing in the post service record that suggests
tinnitus deriving from service except the Veteran's own
statements to this effect. There is no reliable post service
showing of any continuity of in-service tinnitus. The Board
observes that when examined for VA compensation purposes in 2008,
the appellant related that he had had tinnitus for the past two
years. Therefore, upon consideration of all of the above, the
Board finds that the silent service treatment records, the normal
separation examination, and tinnitus of abrupt onset with more
than 35 years between service and the report of such militate
against a finding that tinnitus is of service onset.
Moreover, the Veteran has not asserted that tinnitus began in
service, nor does he contend that there has been continuity of
symptomatology since that time. The Board finds that while he
may have had some ringing in his ears during service, there is no
credible showing of continuity of symptoms. Rather, the more
probative evidence of record establishes that there is remote
post service onset of tinnitus. The record reflects that that
appellant has never indicated otherwise.
The Board has carefully considered the appellant's lay statements
and history to the effect that current tinnitus derives from
acoustic trauma in service. Lay assertions may serve to support
a claim for service connection by supporting the occurrence of
lay-observable events or the presence of disability or symptoms
of disability subject to lay observation. 38 U.S.C.A. § 1153(a);
38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372
(2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir.
2006).
The Board points out that the Veteran is competent to report
prior symptoms and state that he has ringing of the ears as the
result of duties in service. A layman is competent to report
that he notices tinnitus as such comes to him through one of his
senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). If
submitted, lay evidence must be considered when a Veteran seeks
disability benefits. 38 C.F.R. § 3.307(b) (2010) clearly states
that the factual basis for proving the existence of a chronic
disease may be established by medical evidence, competent lay
evidence or both. Thus, nothing in the regulatory or statutory
provisions noted above requires both medical and competent lay
evidence; rather, they make clear that competent lay evidence can
be sufficient in and of itself. See Buchanan v. Nicholson, 451
F.3d 1331 (2006).
In this case, however, while the appellant attributes ringing of
the ears to jet engine noise in service, he indicates in clinical
records dated in 2005 that he had only had tinnitus for two
months. His history in this regard has been consistent in
subsequent clinical records. However, in the context of more
than 35 years between service discharge and the onset of
tinnitus, the Board finds that the Veteran's statements alone do
not provide a credible basis for a lay nexus to service in this
instance. Whether there is any relationship between the sudden
onset of ringing of the ears and events that ended 35 years
before requires specialized training for a determination, and is
therefore not susceptible of lay opinion. In this respect, a
medical professional has the greater skill.
As indicated previously, following review of the record in
October 2008, the VA examiner found that the abrupt onset of
right-sided tinnitus with no prior complaints suggested that the
most likely etiology of such was viral cochleitis. It was also
determined that in any event, there was every reason to find that
current symptoms occurred subsequent to separation from service.
The Veteran has stated that his doctors have told him that
tinnitus is related to noise exposure in service. In fact, a PA-
C included an assessment of tinnitus-likely noise induced. This
constitutes positive evidence and seems to be in accord with his
credible pleadings. However, we accord comparatively little
probative value to the opinion of the PA-C. The opinion of the
PA-C is remarkably lacking in detail and reasoning. A mere
statement of opinion, without little more, does not provide an
opportunity to explore the basis of the opinion. Against this
background, the 2008 opinion was based upon a historic review of
the record, physical examination, considered the Veteran's lay
evidence and provided an alternative theory. In essence, the
2008 opiniion was detailed and reasoned. As noted by the Court,
the probative value of medical evidence is based on the medical
expert's personal observation of the patient, the physician's
knowledge and skill in analyzing the data, and the medical
conclusion that the physician reaches. See, Guerrieri v. Brown,
4 Vet. App. 467, 471 (1993).
In reaching this determination, the Board has considered all the
evidence of record to include the lay and medical evidence.
However, the more probative evidence consists of the opinion of
the skilled professional in 2008. The opinion is based upon
clinical findings, a review of the record and consideration of
the Veteran's statements. The Veteran's own statements in
conjunction with objective clinical evidence provide little basis
for a favorable decision in this matter. Similarly, the opinion
of the PA-C is remarkable for the lack of reasoning. For the
foregoing reasons, the Board concludes that the preponderance of
the evidence is against the claim of entitlement to service
connection for tinnitus and service connection must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
54-56 (1990).
ORDER
Service connection for tinnitus is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs